Another Try at Restricting Picketing at Funerals

California is taking a second cut at trying to prevent picketers from adding to the grief of families at the funerals of loved ones.

The state Senate sent the Assembly on a unanimous vote, a bill that would require protesters to stay 500 feet away from one hour before until one hour after a funeral service.

Not doing so would be a misdemeanor.

Gov. Jerry Brown vetoed a measure last fall to halt such protests, saying it ran afoul of a US Supreme Court ruling.

The new bill, SB 661, is by Sen. Ted Lieu, a Torrance Democrat, who also authored the previous measure – SB 888 rejected by the Democratic governor.

Lieu and the bill’s supporters, which include several veterans groups, say that reasonable limits can be placed on speech – particularly when it helps protect grieving families.

Opponents of the bill, led by the American Civil Liberties Union, argue the measure’s 500-foot buffer zone unfairly restricts free speech.

Lieu’s current bill and its predecessor are a response to the Westboro Baptist Church of Topeka, Kansas which protests at funerals and other public events using explicit signs to protest homosexuality, Catholicism and Judaism, among other things.

Their right to conduct such protests has been upheld by the United States Supreme Court.

Lieu says his latest bill attempts to pass constitutional muster – and win Brown’s signature – by halving the 1,000-foot distance protesters must be from a funeral in the measure Brown vetoed.

Sen. Ted Lieu

“It’s less of a restriction on speech because the buffer zone is smaller,” Lieu said.

The ACLU says that’s still too much.

“In cases involving anti-abortion protesters at medical clinics, the Supreme Court has acknowledged the vulnerable emotional and physical state of clinic patients but it has never approved a free speech buffer zone greater than 100 feet.”

More than 40 states have placed some form of restrictions on protests at funerals. Ohio, for example, has a 300-foot buffer.

Describing the church protesters conduct as “offensive,” Brown admitted he was “very tempted” to sign Lieu’s previous bill but said he couldn’t “because it plainly fails to comport with the Supreme Court’s decision” upholding the church’s activities.

Westboro Baptist Church, comprised primarily of Fred Phelps and his extended family, entered the national spotlight in 1998 when it picketed the funeral of Matthew Shepard, a Wyoming youth beaten to death because of his homosexuality.

Members most recently picketed the Golden Globe Awards on January 17 and threaten a picket the funeral of Joe Paterno, according to their website.

In 2006, church members brandished signs saying “Thank God for Dead Soldiers,” “Pope in Hell,” “Thank God for IEDs” and “God Hates Fags” — in a picket at the Westminster, Maryland funeral of U.S. Marine Lance Cpl. Matthew Snyder who was killed in Iraq.

A trial court awarded him $5 million but the judgment was reversed by an appellate court, which held that the church was protected under the First Amendment “notwithstanding the distasteful and repugnant nature of the words.”

The high court said the church’s actions were not unruly, occurred on public land more than 1,000 feet from the services and, in short, the protesters “had the right to be where they were.”

Writing or the majority, Chief Justice John Roberts concludes:

“Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials.

“Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

Justice Samuel Alito, one of the court’s most conservative members, was the lone dissenter. He notes that Matthew Snyder and his family are private citizens and that the church, rather than commenting on an issue of public concern, attacks the parents directly.

Alito quotes from an online church missive after the funeral. This is the first paragraph:

“God blessed you, Mr. and Mrs. Snyder, with a resource and his name was Matthew. He was an arrow in your quiver! In thanks to God for the comfort the child could bring you, you had a DUTY to prepare that child to serve the LORD his GOD—PERIOD! You did JUST THE OPPOSITE—you raised him for the devil.

Says Alito:

“It is abundantly clear that respondents, going far beyond commentary on matters of public concern, specifically attacked Matthew Snyder because (1) he was a Catholic and (2) he was a member of the United States military.

“Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.

“In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner,” Alito wrote.

For the record: yes, I am a card-carrying member of the ACLU. But the more important question is why aren’t you, Bob? Now, this is an organization whose sole purpose is to defend the Bill of Rights, so it naturally begs the question: Why would a senator, his party’s most powerful spokesman and a candidate for President, choose to reject upholding the Constitution? If you can answer that question, folks, then you’re smarter than I am, because I didn’t understand it until a few hours ago. America isn’t easy. America is advanced citizenship. You gotta want it bad, ’cause it’s gonna put up a fight. It’s gonna say “You want free speech? Let’s see you acknowledge a man whose words make your blood boil, who’s standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours. You want to claim this land as the land of the free? Then the symbol of your country can’t just be a flag; the symbol also has to be one of its citizens exercising his right to burn that flag in protest. Show me that, defend that, celebrate that in your classrooms. Then, you can stand up and sing about the “land of the free”.